Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Stan Blumenfeld, Judge. Affirmed in part; remanded for resentencing. Los Angeles County Super. Ct. No. GA066930
Edward H. Schulman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
PERLUSS, P. J.
Adrian Fernando Gurrola appeals from the judgment entered after his conviction by a jury on one count of first degree murder, three counts of attempted murder, one count of aggravated assault and one count of felony cruelty to an animal with true findings on related firearm and gang enhancements. We remand to correct sentencing errors conceded by the Attorney General, but otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1.The Crimes
In the late evening of July 10, 2005 several witnesses watched as a light-colored pickup truck carrying two young Latino males drove down a residential street in northwest Pasadena near the 210 freeway. The truck backed into the driveway of an apartment building; a group of four young Latino men, including Edgar Ortiz and Luis Andrade, stood nearby. One of the occupants of the truck, wearing a black beanie and sweatshirt and armed with a rifle, climbed into the back of the truck and sprayed 12 shots toward the young men. Bystanders heard someone yell “VPR” and shout obscenities before the truck sped away. Ortiz, struck by a large caliber bullet from a semiautomatic rifle, died of his wounds. Andrade suffered two gunshot wounds in the back but survived. Ortiz’s dog was also shot and killed.
On the evening of July 15, 2005 Martin Ronquillo, a member of the Latin Kings criminal street gang, was walking near the 1800 block of Summit Avenue in Pasadena when he was approached by a slight Latino teenager on a bicycle; the youth was wearing dark blue or black clothes. The teenager first asked Ronquillo where he was from and then swung a knife at him, cutting Ronquillo in the chin. Ronquillo ran. He was chased by two people, including the boy on the bike, who again stabbed Ronquillo in the left tricep. Pasadena police, responding to an emergency telephone call, saw two young men running up a driveway and found Gurrola and his brother in the house at that location. Gurrola, whom the police already knew to be a member of the Varrio Pasadena Rifa (VPR) street gang known as either “Soldier Boy” or “Little Soldier, ” was wearing a dark blue T-shirt and dark blue shorts.
One week later a Pasadena police officer approached a group of four young men in the Summit Avenue area and asked if they were engaged in illegal activity. Gurrola pulled a five-inch, spring-loaded, double-edged knife from his pocket and showed it to the officer. The officer confiscated the knife.
Under Penal Code section 653k, it is a misdemeanor to carry a switchblade knife having a blade more than two inches long. Statutory references are to the Penal Code unless otherwise indicated.
2.The Investigation
Pasadena police detectives investigating the July 10, 2005 shooting recognized “VPR” as the initials of the Varrio Pasadena Rifa street gang, which claimed as its territory the 1800 block of Summit Avenue in Pasadena. VPR had an ongoing rivalry with the Northside Pasadena (NSP) street gang, as well as several other area gangs. Although the victims of the July 10 shooting were not members of NSP, they belonged to a tagging crew associated with NSP; and Andrade’s brother was a member of NSP, whose members sometimes congregated in the area.
The investigation of the shooting revealed a white Silverado pickup truck fitting the description given by witnesses was registered to Johnny Rincon, a known VPR member. Based on information received from gang officers, Pasadena Police Detective Cuong Pham focused his attention on Rincon’s brother, Luis, and Gurrola, who was then 14 years old. Pham secured the cooperation of Thomas Gongora, also known as Loco, one of VPR’s founding members. Gongora (who had moved to the Midwest by the time of trial) agreed to speak to other gang members about the shooting while wearing a hidden microphone that would allow his conversations to be recorded. He first approached an older VPR gangster known as Tito, the leader of the gang, and told him the Mexican Mafia had issued a green light (an order to kill) on VPR because of the shooting. Tito told Gongora to speak to Boxer, a younger member of the gang, who told Gongora to speak to Luis Rincon, also known as Oso. Rincon then directed Gongora to Gurrola.
In prison gang slang, to “green light” a person is to authorize a contract killing. According to testimony at trial, an entire gang or neighborhood may be “green-lighted” as discipline for a perceived violation of gang rules. Green lights on an entire gang or neighborhood authorize members of other gangs to kill members of the green-lighted gang with impunity, unless the green-lighted gang is able to buy its way out of the green light.
At the time Gurrola was being held in a youth detention center. Using a fabricated story, Gongora told Gurrola “La Eme” (the Mexican Mafia prison gang) was trying to give VPR a green light because children had been present at the location of the July 10, 2005 shooting in violation of gang ethics. Gongora claimed he could clear the green light if Gurrola confirmed Oso’s account of what had happened. Gurrola initially resisted, telling Gongora he had heard Gongora was a snitch and not to be trusted. Claiming to be his brother Thomas rather than Loco or Loquito, the moniker of the alleged snitch, Gongora cajoled Gurrola into talking about the shooting. Gurrola told Gongora the shooting had occurred just as Oso had described: Oso had been the shooter; and there had been no children in the area, only the “vatos” (roughly, “dudes”) from NSP. Gurrola identified himself as Soldier Boy in the conversation, which lasted about an hour. In the course of the conversation, Gurrola told Gongora he did not need money because his aunt had been providing him with drugs to sell in the detention center. Gurrola also claimed he had stabbed a Latin Kings gang member who had been walking in VPR’s territory on the 1800 block of Summit Avenue and threatened to “take out” other rivals once he was released from the detention center. The entire conversation was recorded by Detective Pham.
3.Trial Proceedings
After a preliminary hearing at which the tape recording of Gongora’s conversation with Gurrola was played, Gurrola was charged by information with the murder of Ortiz (§ 187, subd. (a)) (count 1); the attempted willful, deliberate and premeditated murder of Andrade, Juan Anthony Loya, Mark Ramirez Sandoval and Anthony Carrillo (§§ 664, subd. (a), 187, subd. (a)) (counts 2-5); felony cruelty to animals for the killing of Ortiz’s dog (§ 597, subd. (a)) (count 6); and related criminal street gang and firearm-use enhancements. Gurrola was also charged with assault with a deadly weapon (§ 245, subd. (a)(1)) (count 7) for the knife attack on Ronquillo, as well as a criminal street gang enhancement allegation as to that count.
The information was amended at trial to dismiss count 4, one of the attempted murder charges, when the evidence established Sandoval had not been present during the shooting.
Although the information was originally pleaded under the theory Gurrola had been the shooter, the People amended those allegations at trial.
Before trial Gurrola’s counsel moved to exclude the audiotape of his conversation with Gongora on the ground Gongora had coerced Gurrola into admitting his role in the shooting. The trial court denied the motion. The audiotape, which was not only played for the jury but also explained by the People’s gang expert, Pasadena Police Officer Andrea Perez, proved to be the linchpin in the People’s case after witnesses to the shooting either refused to answer questions truthfully or claimed not to remember details they had described to Detective Pham at the time of the shooting. Ronquillo, as well, refused to identify Gurrola as his attacker. Gurrola did not testify. The jury, after receiving extensive testimony about gang culture and conduct in northwest Pasadena, including testimony from a defense expert on gangs, convicted Gurrola on all counts and found the murder of Ortiz to be in the first degree and the three attempted murders to be willful, deliberate and premeditated. The jury also found true the special allegation the crimes had been committed for the benefit of a criminal street gang, the allegation a principal had used a firearm in the shootings resulting in death or great bodily injury, and the knife attack on Ronquillo had resulted in great bodily injury.
Before sentencing Gurrola, the trial court affirmed its earlier ruling on the motion to exclude his statements to Gongora and issued a lengthy written opinion setting forth its reasons. Gurrola was sentenced to an aggregate state prison term of 206 years to life: On each of counts 1, 2, 3 and 5 Gurrola was sentenced to a consecutive term of 25 years to life, plus 25 years to life for the use of a firearm under section 12022.53, subdivisions (d) and (e)(1). The court also specified a minimum parole eligibility date of 15 years on each of the three indeterminate life terms for attempted murder pursuant to section 186.22, subdivision (b)(5). Gurrola was also sentenced to a consecutive term of eight months (one-third the middle term of 24 months) on count 6 and a consecutive term of one year (one-third the middle term of three years) on count 7, plus one year (one-third the prescribed three-year term) for the great bodily harm enhancement and an additional 40 months (one-third the middle term of 10 years) for the criminal street gang enhancement (§ 186.22, subd. (b)(1)(B) and (C)).
CONTENTIONS
Gurrola contends the trial court erred in admitting his statements to Gongora, which he claims were coerced by the threat of the green light, he was improperly convicted of felony cruelty to animals because a violation of section 597 is a specific rather than general intent crime, the great bodily injury enhancement on count 7 was improper, he was exposed to double jeopardy and the court erred in calculating his sentence.
DISCUSSION
1.The Trial Court Did Not Err in Admitting Gurrola’s Audiotaped Statements
A defendant’s confession or admission is involuntary, and thus subject to exclusion at trial, only if it is the product of coercive police activity. (People v. Williams (1997) 16 Cal.4th 635, 659 (Williams).) In deciding the question of voluntariness both the United States and California Supreme Courts require courts to apply a “totality of circumstances” test. (Withrow v. Williams (1993) 507 U.S. 680, 693-694 [113 S.Ct. 1745, 1754, 123 L.Ed.2d 407]; People v. Massie (1998) 19 Cal.4th 550, 576; Williams, at p. 660.) “Relevant are ‘the crucial element of police coercion [citation]; the length of the interrogation [citation]; its location [citation]; its continuity’ as well as ‘the defendant’s maturity [citation]; education [citation]; physical condition [citation]; and mental health.’” (Williams, at p. 660.) The ultimate question in determining the voluntariness of a confession is “‘whether defendant’s choice to confess was not ‘essentially free’ because his will was overborne.’” (Massie, at p. 576.)
There is no dispute Gongora acted as an agent of the police when he questioned Gurrola and elicited the confession. (See Arizona v. Fulminante (1991) 499 U.S. 279, 287, fn. 4 [111 S.Ct. 1246, 113 L.Ed.2d 302]; People v. Whitt (1984) 36 Cal.3d 724, 745.)
“On appeal, we review independently the trial court’s determination on the ultimate legal issue of voluntariness. [Citation.] But any factual findings by the trial court as to the circumstances surrounding an admission or confession, including ‘“the characteristics of the accused and the details of the interrogation” [citation], ’ are subject to review under the deferential substantial evidence standard.” (Williams, supra, 16 Cal.4th at pp. 659-660.)
Evidence a defendant’s admissions were preceded by threats or induced by promises is significant in evaluating whether the statements were voluntary. (People v. Neal (2003) 31 Cal.4th 63, 84 [“[p]romises and threats traditionally have been recognized as corrosive of voluntariness”]; People v. Boyette (2002) 29 Cal.4th 381, 412 [“[a] promise to an accused that he will enjoy leniency should he confess obviously implicates the voluntariness of any resulting confession”].) Threats or promises involving relatives may also justify finding a confession involuntary. (See People v. Soto (1984) 157 Cal.App.3d 694, 708 [“[i]t has been held that where ‘a confession is coerced by a threat to arrest a near relative, it is not admissible’”].) The presence of such a threat or promise, however, is not necessarily determinative: “[U]nder current law, no single factor is dispositive in determining voluntariness.” (Williams, supra, 16 Cal.4th at p. 661.)
Gurrola argues his confession was involuntary because he, as a 14-year-old confronted by a larger and older gang member, was both physically and emotionally intimidated by the threatened green light, which implicated not only him but also his friends and family. As the trial court found, however, in a thoughtful and comprehensive ruling on Gurrola’s motion to exclude the statements, Gurrola “appeared alert, calm, and responsive” during the conversation, “manifesting no verbal signs of anxiety or fear.” Gongora, in turn, “spoke in a mild, friendly, non-accusatory, non-threatening, and supportive tone.” Although, as the court described, Gurrola was at first suspicious of Gongora, believing him to be an informant, he “did not hesitate to confront Gongora, accusing him to his face of being ‘no good.’” Gurrola also challenged Gongora’s story about a green light, claiming he already knew there was no green light. As the court pointed out, Gurrola “did not express any fear or concern about a possible ‘green light.’”
Gongora was described as 35 years old, about six feet two inches tall and weighing 200 pounds at the time of the conversation. Gurrola, on the other hand, was only five feet five inches tall and weighed about 145 pounds.
Gurrola also challenges the use of a ruse to seduce him into making incriminating statements. “The use of deceptive statements during an interrogation, however, does not invalidate a confession unless the deception is ‘“‘of a type reasonably likely to procure an untrue statement.’”’” (People v. Carrington (2009) 47 Cal.4th 145, 172.) “‘The courts have prohibited only those psychological ploys which, under all the circumstances, are so coercive that they tend to produce a statement that is both involuntary and unreliable.’” (People v. Jones (1998) 17 Cal.4th 279, 297-298.) The question is whether the deception is “of the type to induce an innocent man to implicate himself in the crime.” (People v. Watkins (1970) 6 Cal.App.3d 119, 125.) As the trial court observed, however, had Gurrola not participated in the shooting, he could easily have said so to Gongora. Instead, he reassured Gongora that Oso had answered truthfully and that there had been no children present during the shooting. He also shared the facts, not sought by Gongora, he had stabbed a rival Latin Kings gang member in VPR territory, was selling drugs supplied by his aunt to others in the detention center and planned to attack rival gang members upon his pending release from detention. The admissions were not made under oppressive conditions; the conversation lasted approximately an hour; and, as soon as Gurrola assured himself of Gongora’s credibility, he talked spontaneously and freely.
Under these circumstances there is no reason to believe Gurrola’s statements were either coerced or untruthful. (Cf. Mincey v. Arizona (1978) 437 U.S. 385, 398-399 [98 S.Ct. 2408, 57 L.Ed.2d 290] [defendant’s statements to the police were not the product of a free and rational choice under the circumstances, where he was questioned for more than three hours, had been seriously wounded several hours earlier, was confused and unable to think clearly, and stated repeatedly he did not wish to speak without having a lawyer present]; Spano v. New York (1959) 360 U.S. 315, 320-324 [79 S.Ct. 1202, 3 L.Ed.2d 1265] [confession made by young, emotionally unstable man after eight-hour interrogation, continued despite his requests to speak to his attorney and his repeated refusals to answer questions, was involuntary].)
2.The Evidence Was Sufficient To Convict Gurrola of Felony Cruelty to Animals
Gurrola contends his conviction for felony cruelty to animals should be reversed because section 597, subdivision (a), required proof of his specific intent to kill Ortiz’s dog and the evidence was insufficient to meet this standard.
Section 597, subdivision (a), provides in part: “[E]very person who maliciously and intentionally maims, mutilates, tortures, or wounds a living animal, or maliciously and intentionally kills an animal, is guilty of an offense punishable by imprisonment in the state prison....” Gurrola argues the language “maliciously and intentionally” requires a showing a defendant not only intentionally committed an act that resulted in harm to an animal but that he acted with the specific intent to harm the animal. This contention was rejected by the Fourth District in People v. Alvarado (2005) 125 Cal.App.4th 1179 (Alvarado), in which the Court of Appeal applied the Supreme Court’s decision in People v. Atkins (2001) 25 Cal.4th 76 (Atkins) to conclude section 597, subdivision (a), is a general intent statute.
In Atkins, supra, 25 Cal.4th at page 85, reviewing section 451, an arson statute, the Supreme Court held the terms “willfully and maliciously” did not transform the crime of arson into a specific intent crime: “‘[T]he terms “willful” or “willfully, ” when applied in a penal statute, require only that the illegal act or omission occur “intentionally, ” without regard to motive or ignorance of the act’s prohibited character.’ [Citation.] ‘Willfully implies no evil intent; “‘it implies that the person knows what he is doing, intends to do what he is doing and is a free agent.’ [Citation.]”’ [Citations.] The use of the word ‘willfully’ in a penal statute usually defines a general criminal intent, absent other statutory language that requires ‘an intent to do a further act or achieve a future consequence.’” “As with ‘willfully, ’ the statutory definition of ‘maliciously, ’ in the context of arson, requires no specific intent. Section 450, subdivision (e) defines ‘maliciously’ in terms of the arson statutes as ‘a wish to vex, defraud, annoy, or injure another person, or an intent to do a wrongful act....’ Outside the context of arson, the term ‘malicious, ’... does not transform an offense into a specific intent crime. [Citations.] Nor does the term ‘malicious’ transform an offense into a specific intent crime in the context of arson.” (Atkins, at pp. 85-86.)
In keeping with Atkins the Fourth District explained, “The expressions ‘willfully, ’ ‘knowingly, ’ ‘intentionally, ’ and ‘maliciously’ are expressions of general, not specific, intent when used in a penal statute. [Citations.] More specifically, the term ‘intentionally’ in a penal statute refers to general intent: ‘[T]he occurrence of the terms “intentionally” and “knowingly” in a penal statute do not imply that the offense so defined is a specific intent crime. As a rule, the term “intentionally” requires only that the agent acted intentionally in engaging in the proscribed conduct, and not that the agent knew that the conduct was proscribed.’” (Alvarado, supra, 125 Cal.App.4th at p. 1188.) If the Legislature had intended section 597, subdivision (a), to describe a specific intent crime, the court noted, “it would have used language describing an act and an additional purpose for which the act was done. For instance, the statute could have read, ‘Every person who maliciously and intentionally strikes a living animal, with the intent to maim, mutilate, etc.’” (Alvarado, at p. 1187, italics added; see also Atkins, supra, 25 Cal.4th at p. 86 [specific intent crimes typically contain such phrases as “‘with the intent to’” achieve or “‘for the purpose of’” achieving some additional result].)
Gurrola acknowledges the decision in Alvarado but urges us to consider Justice McIntyre’s concurring opinion in the case. Justice McIntyre argued the additional intent required by the majority’s analysis was found in two facts. First, the Legislature’s addition of the word “intentionally” in 1986 to subdivision (a), which had originally made it a crime to “maliciously” maim, mutilate, torture, wound or kill a living animal suggested something more was needed than general intent. (See Stats. 1986, ch. 846, § 1, p. 2894.) Second, the statute’s litany of criminal acts-i.e., “maim, ” “mutilate” and “torture”- inherently described end results, not just proscribed acts, thereby requiring specific intent to accomplish a stated purpose. (See Alvarado, supra, 125 Cal.App.4th at pp. 1191-1192 (conc. opn. of McIntyre, J).)
We disagree with the view expressed in Justice McIntyre’s separate opinion. As the majority recognized, the terms “maim, ” “mutilate, ” and “torture” may reasonably be viewed as proscribed acts, rather than end results. As did the Alvarado majority, we find persuasive the Supreme Court’s decision in People v. Sargent (1999) 19 Cal.4th 1206, in which the Court concluded a statute criminalizing child abuse by direct assault (§ 273, subd. (a)), required a showing of general rather than specific intent. (Sargent, at pp. 1219-1223; accord, Alvarado, supra, 125 Cal.App.4th at p. 1188 [Sargent “made clear that regardless of whether the proscribed act could also in some circumstances be considered an end result, where it is used to describe the act itself and there is no purpose or result required, it is a general intent crime”].)
On a more practical level, however, were we not to construe section 597, subdivision (a), as a general intent statute, the shooting here, in which the dog was killed by bullets intended for people, would avoid prosecution under this subdivision and would be relegated instead to subdivision (b), a provision otherwise intended to target cruel neglect or abuse of animals. The 1986 amendments appear to have been intended to clarify that subdivision (a) applied to intentional acts, as several courts had held (see, e.g., People v. Dunn (1974) 39 Cal.App.3d 418, 420-421 [“malice” required by § 597, subd. (a), prohibits intentional acts of cruelty to animals]), while subdivision (b) included crimes toward animals arising from criminal neglect. (See, e.g., People v. Brian (1980) 110 Cal.App.3d Supp. 1, 4 [violation of § 597, subd. (b), requires proof of criminal negligence].) The Legislature’s addition of the word “intentionally” to subdivision (a) confirmed a different standard of culpability for violations of subdivisions (a) and (b).
Section 597, subdivision (b), provides: “Except as otherwise provided in subdivision (a) or (c), every person who overdrives, overloads, drives when overloaded, overworks, tortures, torments, deprives of necessary sustenance, drink, or shelter, cruelly beats, mutilates, or cruelly kills any animal, or causes or procures any animal to be so overdriven, overloaded, driven when overloaded, overworked, tortured, tormented, deprived of necessary sustenance, drink, shelter, or to be cruelly beaten, mutilated, or cruelly killed; and whoever, having the charge or custody of any animal, either as owner or otherwise, subjects any animal to needless suffering, or inflicts unnecessary cruelty upon the animal, or in any manner abuses any animal, or fails to provide the animal with proper food, drink, or shelter or protection from the weather, or who drives, rides, or otherwise uses the animal when unfit for labor, is, for every such offense, guilty of a crime punishable as a misdemeanor or as a felony or alternatively punishable as a misdemeanor or a felony and by a fine of not more than twenty thousand dollars ($20,000).”
In sum, we agree with the majority in Alvarado that subdivision (a) of section 597 requires only proof of general intent, not a specific intent to kill an animal. The evidence at trial was thus more than sufficient to establish the requisite culpability for the killing of Ortiz’s dog.
Because we conclud section 597, subdivision (a), is a general intent crime, we need not address Gurrola’s further arguments the court improperly instructed the jury and wrongly imposed fines related to this count.
3.Gurrola Received Adequate Notice of the Section 12022.7 Enhancement on Count 7
Due process requires a criminal defendant be given fair notice of the charges against him to provide an opportunity to prepare a defense and to avoid unfair surprise at trial. (People v. Toro (1989) 47 Cal.3d 966, 973, disapproved on another ground in People v. Guiuan (1998) 18 Cal.4th 558; People v. Lohbauer (1981) 29 Cal.3d 364, 368-369; see People v. Tardy (2003) 112 Cal.App.4th 783, 786.) Constitutional principles of due process are satisfied, however, as long as the accusatory pleading apprises the defendant of the potential for the enhanced penalty and alleges every fact and circumstance necessary to establish its applicability. (People v. Thomas (1987) 43 Cal.3d 818, 826; Tardy, at p. 787.)
Gurrola contends his sentence for the aggravated assault on Ronquillo was unlawfully enhanced under section 12022.7, which authorizes imposition of an additional three-year term when the underlying felony results in great bodily harm or injury, because the People failed to allege an enhancement under this section in the information. (See People v. Mancebo (2002) 27 Cal.4th 735 [failure to allege specified circumstances under “One Strike” law (§ 667.1) precluded imposition of sentence enhancements under that statute] (Mancebo).)
Gurrola is correct the People failed to include an allegation under section 12022.7 before the case proceeded to the jury. The original information alleged Gurrola had committed an assault on Ronquillo with a deadly weapon, a knife. In addition, the information alleged the crime involved “great violence, great bodily harm, threat of bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness within the meaning of California Rules of Court, Rule 4.421(a)(1).” An amended information contained the same allegations but also mistakenly included count 7 in the firearm-use allegation under section 12022.53, subdivisions (c) and (e)(1). Upon receipt of the amended information, the court asked the prosecutor about the firearm-use allegation with respect to count 7, and the prosecutor acknowledged the error. The court agreed to strike the allegation by interlineation.
California Rule of Court, rule 4.421, identifies aggravating circumstances associated with a particular crime a court may consider in sentencing a defendant under section 1170, subdivision (b).
At the close of evidence the court provided counsel with a set of prepared jury instructions that contained CALCRIM No. 3160, entitled “Great Bodily Injury.” The court asked counsel whether they had had an opportunity to review the proposed instructions and to identify any issues with the proposed instructions. The court then confirmed its understanding there were no objections and directly asked defense counsel for a response. After a short colloquy in which defense counsel questioned whether he had a complete set of instructions (according to the court he did), he acknowledged he had no objections to the set he had been given and promised to “listen carefully.” Defense counsel made no objection when the instruction was read.
The instruction read in part: “If you find the defendant guilty of the crime charged in Count 7, you must then decide whether the People have proved the additional allegation that the defendant personally inflicted great bodily injury on Martin Ronquillo during the commission of that crime. [¶] Great bodily injury means significant or substantial physical injury that is greater than minor or moderate harm....”
The jury was also provided with a verdict form for count 7 that included the provision, “We further find the allegation that in the commission of the above offense, the defendant personally inflicted great bodily injury upon Martin Ronquillo, ... within the meaning of Penal Code Section 12022.7[, subdivision ](a) to be [true/untrue].” Again, defense counsel made no objection.
We have previously held the failure to separately allege a section 12022.53, subdivision (d), enhancement with respect to a particular count does not bar it from being imposed on that count, based on the jury’s finding, so long as a defendant was provided notice elsewhere he faced an enhanced penalty for causing great bodily injury for shooting another person. In People v. Riva(2003) 112 Cal.App.4th 981 (Riva) this court upheld the imposition of a sentence enhancement under section 12022.53, subdivision (d), on an underlying conviction for shooting at an occupied vehicle. (See Riva, at pp. 666-667.) There, the information pleaded the enhancement on other counts but omitted it on the section 246 count. We concluded Riva had adequate notice of the charges against him.
As in Riva, Gurrola had notice of the People’s allegation he had inflicted great bodily injury on Ronquillo. To be sure, the allegation citing the California Rules of Court, rather than section 12022.7, related to the court’s discretion to impose a harsher sentence because of the presence of an aggravating circumstance; but Gurrola has identified no possible prejudice arising from the absence of the corresponding charge under section 12022.7. Although we are aware of other recent decisions disallowing convictions based on uncharged allegations (see, e.g., People v. Botello (2010) 183 Cal.App.4th 1014 [rejecting People’s effort on appeal to substitute § 12022.53, subd. (e)(1), enhancement for true findings not supported by evidence under § 12022.53, subds. (b)-(d)]; People v. Arias (2010) 182 Cal.App.4th 1009 [vacating jury findings of attempted premeditated murder when information failed to allege attempted murders were “willful, deliberate, and premeditated”]), the jury here was provided with complete jury instructions and accurate verdict forms required to make the proper findings. This is not a case where the jury’s verdicts must be interpreted to support an unalleged sentencing consequence. (Cf. Mancebo, supra, 27 Cal.4th at p. 743 [“[s]ubstitution of that unpleaded circumstance for the first time at sentencing as a basis for imposing the indeterminate terms violated the explicit pleading provisions of the One Strike law”]; Botello, at p. 1021 [jury instructed under § 12022.53, subd. (e)(1), but not provided with verdict form on that allegation and returned no finding under that provision]; Arias, at p. 1017 [jury instructed attempted murder must be willful, deliberate and premeditated but made no finding on allegation because jury verdict form omitted necessary finding].)
Accordingly, coupled with defense counsel’s failure to object to the inclusion of the section 12022.7, subdivision (a), allegation in the jury instructions and in the verdict form, we conclude the information was impliedly amended to include the allegation, and the sentence imposed under that enhancement was proper. (See People v. Toro, supra, 47 Cal.3d at pp. 976-977 [defendant failed to object to instructions and verdict forms viewed as “‘“an implied consent to treat the information as having been amended to include the offense on which the sentence was imposed”’”].)
In light of this conclusion, we need not address Gurrola’s further contention the ensuing gang enhancement must be vacated.
4. Gurrola’s Double Jeopardy Claims Lack Merit
Gurrola contends he was subjected to double jeopardy because the necessary finding for the firearm-use enhancement in section 12022.53, subdivisions (d) and (e), duplicates one of the elements of murder-namely the death of the victim. As he acknowledges, the California Supreme Court has rejected this argument (see People v. Sloan (2007) 42 Cal.4th 110, 115-124; People v. Izaguerre (2007) 42 Cal.4th 126, 128-134); and we decline his invitation to register our disagreement with those decisions, which are binding on us. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Undaunted, Gurrola claims the California Supreme Court’s view on this issue cannot be reconciled with decisions of the United States Supreme Court in Ring v. Arizona (2002) 536 U.S. 584 [122 S.Ct. 2428, 153 L.Ed.2d 556] and Sattazahn v. Pennsylvania (2003) 537 U.S. 101 [123 S.Ct. 732, 154 L.Ed.2d 588].) Gurrola must pursue that theory in federal court.
5.The Case Must Be Remanded for Correction of the Sentence
At the sentencing hearing the trial court imposed a 25-year-to-life term for first degree murder (count 1) plus an additional term of 25 years to life for the firearm-use enhancement found true pursuant to section 12022.53, subdivisions (d) and (e)(1). At the request of the People the court stayed the criminal street gang enhancement and then designated this count “the principal term.” As to the attempted willful, deliberate and premeditated murder charge in count 2, the court sentenced Gurrola to “an indeterminate term with a minimum term of 15 years for parole eligibility, ” based on the criminal street gang enhancement of section 186.22, subdivision (b)(5), plus an additional term of 25 years to life for the firearm-use enhancements, which the court then summed to “an aggregate term of 50 years to life with a minimum term of 15 years for parole eligibility.” The court imposed the same sentence for counts 3 and 5 and stated all three attempted murder counts would run consecutively to count 1 and to each other. The court then imposed “subordinate” determinate sentence terms on both counts 6 and 7. The minute order entered following the sentencing hearing reflects four consecutive 25-years-to-life plus 25-years-to-life terms for counts 1, 2, 3 and 5.
Section 186.22, subdivision (b)(5), states in part: “[A]ny person who violates this subdivision in the commission of a felony punishable by imprisonment in the state prison for life shall not be paroled until a minimum of 15 calendar years have been served.”
Gurrola contends, and the People concede, the court’s sentence was incorrect in several respects. First, the sentence for attempted willful, deliberate and premeditated murder is an indeterminate life sentence with the possibility of parole, not 25 years to life. (§ 664, subd. (a); see § 3046, subd. (a)(1) [no prisoner imprisoned under a life sentence may be paroled until he or she has served a term of at least seven calendar years]; see also Porter v. Superior Court (2009) 47 Cal.4th 125, 134; People v. Salas (2001) 89 Cal.App.4th 1275, 1280.)
In addition, although a 15-year minimum parole eligibility date is properly imposed if a felony punishable by life imprisonment is committed for the benefit of a criminal street gang pursuant to section 186.22, subdivision (b)(5), as in this case, because Gurrola did not personally discharge a firearm causing death or great bodily injury, imposition of the firearm-use enhancement under section 12022.53, subdivisions (d) and (e)(1), precluded imposition of an additional enhancement under the criminal street gang statute. (See People v. Brookfield (2009) 47 Cal.4th 583, 590 [“[A] defendant who personally uses or discharges a firearm in the commission of a gang-related offense is subject to both the increased punishment provided for in section 186.22 and the increased punishment provided for in section 12022.53. In contrast, when another principal in the offense uses or discharges a firearm but the defendant does not, there is no imposition of an enhancement for participation in a criminal street gang... in addition to an ‘enhancement imposed pursuant to’ section 12022.53.”].)
Next, the trial court improperly designated count 1 (first degree murder), for which an indeterminate term was imposed, as the “principal term” and identified each of the only two determinate sentences imposed (on counts 6 and 7) as “subordinate terms.” “Indeterminate term crimes and determinate term crimes are subject to two different sentencing schemes.” (People v. Neely (2009) 176 Cal.App.4th 787, 797, citing §§ 190, 1170 & 1170.1.) The sentences for determinate and indeterminate terms must be calculated separately and independently of each other. (People v. Garza (2003) 107 Cal.App.4th 1081, 1094; see Neely, at p. 797.) Count 7, which carries the greater term of imprisonment, is the correct principal term; and the sentence imposed on count 7 must be the full term for the underlying offense and the applicable specific enhancements. (§ 1170.1, subd. (a).) If upon resentencing the term for count 6 is imposed to run consecutively to count 7, then the trial court’s prior designation of count 6 as a subordinate term may be retained.
Finally, the abstract of judgment omits credit for time served by Gurrola. He is entitled to credit for all days spent in custody. (§ 2900.5.) On remand the trial court is to calculate the appropriate credit for actual time served by Gurrola before sentencing.
DISPOSITION
The judgment is reversed with respect to sentencing only, and the matter is remanded for resentencing to correct the errors identified in this opinion. In all other respects, the judgment is affirmed.
We concur: ZELON, J.JACKSON, J.